With few exceptions, an officer's or an employee's resignation from a position in the classified service must be in writing.

The petitioner [Plaintiff] in this CPLR Article 78 action was employed by the defendant [Town] in a position in the Labor Class of the Classified Service when he was elected to public office in another jurisdiction.

The Petitioner and the Town subsequently disputed whether Plaintiff had orally resigned his position with Town and ultimately the Town sent a letter to Plaintiff reporting that "it had accepted [Plaintiff's resignation]"* effective the December 31. Although Plaintiff sought to retain his position with the Town, the Town refused his request under color of Plaintiff's purported oral resignation.

Plaintiff filed a petition pursuant to CPLR Article 78 seeking a court order directing the Town to reinstate him to his position with back pay, and benefits, contending, among other things, that the Town's action terminating from his position was arbitrary and capricious and in violation of Civil Service Law §75-b.

Supreme Court dismissed Plaintiff claim with respect to the alleged violation of Civil Service Law §75-b, but otherwise granted Plaintiff's petition and directed the Town to reinstate Petitioner to his position with the Town with back pay and benefits. The Town appealed the Supreme Court's ruling.

The Appellate Division rejected the Town's appeal explaining that it was not inconsistent for Supreme Court to dismiss Plaintiff's claim with respect to the alleged violation of Civil Service Law §75-b and then grant him relief pursuant to CPLR Article 78, noting that notwithstanding the Town's argument to the contrary, Plaintiff's to elective office in another jurisdiction did not constitute an automatic resignation of his position as laborer with the Town. Citing People ex rel. Ryan v Green, 58 NY 304, the Appellate Division opined that "[P]hysical impossibility is not the incompatibility of the common law, which existing, one office is ipso factovacated by accepting another." Based upon the record before it, the Appellate Division opined that the two positions in question were not per se incompatible.

Addressing the Town's contention that Supreme Court's granting Plaintiff's petition was erroneous in view of Plaintiff's alleged oral resignation, the court said that the Town's argument was without merit inasmuch as the Town's  employee handbook requires that an employee's resignation be in writing.**

The Appellate Division also rejected the Town's  argument that Plaintiff was not entitled to back pay and benefits. Rather, said the court, CPLR Article 78 allows for damages incidental to "the primary relief sought by the [Plaintiff], i.e., reinstatement to employment and such damages may include full back pay and benefits retroactive to the date of termination."

* Although it is sometimes reported that "a resignation has been accepted," all that is required for a resignation to become operative is its delivery to the appointing authority; approval or acceptance of the resignation is not required for the resignation to take effect (see Hazelton v Connelly, 25 NYS2d 74) unless specific acceptance of a resignation is required by law, rule, regulation or the terms of a controlling collective bargaining agreement. An example of requiring the "acceptance" of the resignation for it to take effect: §2111 of the Education Law, "Resignation of district officers." §2111 states that a school district officer "may resign to a district meeting." §2111 then further provides that officer shall also be deemed to have resigned if he or she filed a written resignation with the district superintendent of his of her district and such superintendent endorses thereon his approval and files the same with the district clerk [emphasis supplied]. See, also, §2110.3 of the Education Law.

** The Town  is located in Seneca County and the County's Civil Service Rule XX, provides, in pertinent part, as follows: 1. RESIGNATION IN WRITING: Except as otherwise provided herein, every resignation shall be in writing.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05312.htm

 

Overcoming the presumption in favor of collective bargaining terms and conditions of employment underlying the Taylor Law

Civil Service Law §71 provides that where an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the Worker's Compensation Law, "he or she shall be entitled to a leave of absence for at least one year, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position."

Under color of Civil Service Law §6[1], the Department of Civil Service promulgated implementing regulations for Civil Service Law §71, setting out procedures for notifying an employee of the right to a one-year leave of absence, notifying an employee of an impending termination following the expiration of that one-year period, the employee's right to a hearing and the procedures to be followed in the event an employee so terminated seeks to return to duty after recovering from the disability.* 

The Long Beach Professional Firefighters Association, IAFF, Local 287 [LBPFA] advised the City of Long Beach [City] that it wished to negotiate the procedure for separating members of LBPFA placed on leave pursuant to §71. City declined to negotiate such a procedure and LBPFA filed an improper practice charge against the City with New York State Public Employment Relations Board [PERB]alleging that the City violated Civil Service Law §209-a(1)(d) by refusing to negotiate the matter with the LBPFA.

An administrative law judge [ALJ] determined that the City had violated Civil Service Law §209-a(1)(d) and PERB affirmed the ALJ's determination. The City then commenced a CPLR Article 78 proceeding challenging PERB's determination. PERB moved to dismiss the petition and the Supreme Court granted its motion. The City appealed the Supreme Court's decision.

The Appellate Division, citing Matter of New York City Tr. Auth. v New York State Pub. Empl. Relations Bd., 19 NY3d 876, observed that "It is well settled that '[t]he Taylor Law requires collective bargaining over all terms and conditions of employment'" and that the Court of Appeals has "'made clear that the presumption ... that all terms and conditions of employment are subject to mandatory bargaining cannot easily be overcome.'"

That said, the court noted that City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73 teaches that "The presumption in favor of bargaining may be overcome only in special circumstances where the legislative intent to remove the issue from mandatory bargaining is plain and clear, or where a specific statutory directive leaves no room for negotiation."** 

Finding that the demand to negotiate the issue raised by LBPFA fell within the ambit of Watertown, the Appellate Division opined that it need not defer to PERB's interpretation of Civil Service Law §71 because "[that] question is one of pure statutory construction dependent only on accurate apprehension of legislative intent [with] little basis to rely on any special competence of PERB."

Addressing the issue de novo, the Appellate Division declared that "the presumption in favor of collective bargaining [had been] overcome." The court then reversed PERB's order and judgment holding PERB's decision null and void, granted the City petition, and dismissed the improper practice charge filed by the LBPFA against the City "with prejudice". 

* See 4 NYCRR 5.9. 

** The Appellate Division's decision also notes that [1] "a subject that would result in [the public employer's] surrender of nondelegable statutory responsibilities cannot be negotiated," citing Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660; and [2] "some subjects are excluded from collective bargaining as a matter of policy, even where no statute explicitly says so," citing Matter of City of New York v Patrolmen's Benevolent Assn. of the City of N.Y., Inc., 14 NY3d 46. See, also, https://publicpersonnellaw.blogspot.com/2010/10/prohibited-subjects-of-arbitration.html

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05504.htm

 

 

Determining a retirement system member's eligibility for accidental disability retirement

On May 9, 2018 the Board of Trustees of the New York City Police Pension Fund [Board] denied a New York City police officer's [Officer] application for accident disability retirement [ADR]. Officer challenged the Board's decision and Supreme Court granting his CPLR Article 78 petition seeking to vacate the Board's determination and awarded Officer ADR benefits retroactive to December 1, 2010. 

The Board appealed and the Appellate Division unanimously reversed the Supreme Court's ruling "on the law," and dismissed Petitioner's Article 78 action. 

The Appellate Division opined that the Board's denial of Officer's application for ADR benefits was not arbitrary and capricious noting that the relevant date for purposes of disability is at or prior to the applicant's retirement from service, citing Matter of Gullo v Kelly, 50 AD3d 449, leave to appeal denied 11 NY3d 702.

The court noted that the Medical Board's consideration of evidence and reports after Officer's retirement, and its conclusion that Officer was disabled several years after his retirement, "does not change the relevant date for entitlement to ADR" benefits.

Further, said the Appellate Division, the Medical Board was entitled to rely on its own examinations and testing of Officer as well as its review of Officer's medical records. These provided some credible evidence to support the Medical Board's finding that Officer was not disabled at the time of his retirement.

Referring to Matter of Khurana v Kelly, 73 AD3d 497, leave to appeal denied 15 NY3d 715, the court held that the Medical Board "was not bound by the contrary opinions of [Officer's] treating physicians."

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05282.htm

 

Diversity training programs

In an article captioned "Diversity Work, Interrupted",* Inside Higher Ed's daily news update dated October 7, 2020, reports that "some institutions have begun to cancel diversity, equity and inclusion programs in response to an Executive Order, "Executive Order on Combating Race and Sex Stereotyping," issued on  September 22, 2020.

Preliminary guidance from the State University of New York notes that the order "makes a passing reference to a carve out for education, stating (in full) that '[n]othing in this order shall be construed to prohibit discussing, as part of a larger course of academic instruction, the divisive concepts listed in section 2(a) of this order in an objective manner and without endorsement.'" Yet it is "unclear how the EO would define its 'objectivity' and 'non-endorsement' requirements." 

The Executive Order is posted on the Internet at https://www.whitehouse.gov/presidential-actions/executive-order-combating-race-sex-stereotyping/. 

* See https://www.insidehighered.com/news/2020/10/07/colleges-cancel-diversity-programs-response-trump-order?utm_source=Inside+Higher+Ed&utm_campaign=275597c9a5-DNU_2020_COPY_02&utm_medium=email&utm_term=0_1fcbc04421-275597c9a5-236506338&mc_cid=275597c9a5&mc_eid=bf9965f865

Employee terminated from employment after progressive disciplinary action taken by the appointing authority

Supreme Court denied the petition filed by the employee [Educator] pursuant to CPLR Article 75 seeking to vacate an arbitration award that, after a hearing pursuant to Education Law §3020-a, found the Educator guilty of the disciplinary charges filed against him and imposed the penalty of dismissal from employment.

Educator appealed but the Appellate Division unanimously affirmed the lower court's ruling.

Citing Cipollaro v New York City Dept. of Educ., 83 AD3d 543, the Appellate Division opined that "[t]]he penalty of termination of [Educator's] employment as a public school teacher does not shock one's sense of fairness."

The court explained that the record shows that Educator failed to instruct students during class time, instead using the time to perform personal tasks on Educator's own laptop computer, noting that the record showed that Educator "had previously been placed on notice that such conduct was not permitted, and prior disciplinary action had failed to remedy [Educator's] misconduct."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_05474.htm. 

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